Case Number: 170047

Whether TUSLA was justified in withholding records in full or in part in respect of the applicant's social work files on the basis of sections 35(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 10 September 2015, the applicant sought copies of all documents held relating to her from TUSLA. Her request was refused on 13 January 2016 on the basis that she had not provided sufficient details to enable the records to be identified by the taking of reasonable steps (section 15(1)(b) of the FOI Act refers). On 6 June 2016, the applicant sought a review of this decision and provided details and timelines of previous addresses she had resided at. On 2 August 2016, TUSLA identified three social work files relating to the applicant, containing 242 records in total, which it granted in part. It granted access to 93 records and withheld 12 records in full and 137 in part on the basis of section 35(1)(a) (confidential information) and section 37(1) (personal information).

On 30 January 2017, the applicant made an application for review of TUSLA's decision to this Office. I note that, during this review, TUSLA was invited to make a submission in relation to its decision in this case, but it decided not to do so.

In conducting this review, I have had regard to the correspondence between TUSLA and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and TUSLA, as well as the contents of the records concerned.

Scope of Review

This review is solely concerned with whether TUSLA was justified in withholding 149 records in full or in part on the basis of section 35(1)(a) and section 37(1) of the FOI Act.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

The applicant has stated that criminal proceedings are possible in relation to a family member who is mentioned throughout the records concerned, and that she seeks the records at issue in order to fully prepare for her dealings with the criminal justice system. However, section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

The applicant has indicated (after checking the pages received at the request of this Office) that she did not receive a copy of pages 243-245, File SW1 from TUSLA. While I note that TUSLA's position is that it provided copies of all of the records it decided to release in full or in part to the applicant, I would ask it to arrange to release a copy of these records to the applicant as soon as possible.

It is important to note that Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Finally, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Analysis and Findings

The records at issue comprise three social work files, numbered SW1 (284 pages/131 records), SW2 (251 pages/106 records) and SW3 (20 pages/5 records).

While it is not completely clear to me from the schedule the applicant has provided whether she is seeking a review of TUSLA's decision in relation to all of the records withheld, I have considered all of the records withheld in full or in part by TUSLA for the purposes of this review.

Section 37
TUSLA withheld the information in the records concerned under sections 35(1)(a) and 37(1) of the FOI Act. I note that Ms Sandra Murdiff, Investigator in this Office, informed TUSLA of her view that section 37 more appropriately applied to the records at issue in this case. I agree. Accordingly, I intend to initially consider all of the records withheld in light of section 37 of the FOI Act.

Section 37(1) provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information of individuals other than the requester. Personal information is defined at section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition.

Section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.

The records concerned are social work files, which by their very nature contain sensitive personal information about the applicant, her family and various other third parties. Having examined the records in question I am satisfied that much of the information withheld comprises the personal information of various third parties, including the applicant's family members as well as third parties such as other in-patients at a Dublin Hospital. The nature of many of the records at issue means that the applicant's personal information is often intertwined with third parties' personal information to such an extent that it would be impossible to separate it out so that her information alone could be released to her.

In the circumstances of this case, and bearing in mind that I must take every reasonable precaution not to disclose information contained in an exempt record, I am satisfied that the information withheld comprises joint personal information and/or the personal information of third parties other than the applicant. Accordingly, I find that section 37(1) and/or section 37(7) applies to the records at issue.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under section 37(1). That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

As noted above, subject to the provisions of the FOI Act, I am required to disregard the applicant's reasons for her FOI request. Therefore, I can only take into account the purpose for which she seeks this information to the extent that it comprises a public interest. The applicant stated that criminal proceedings are possible in this case, and that she seeks the records at issue in order to be as well prepared as possible when facing the criminal justice system as a complainant. She contended that it is important for her ongoing recovery that she has access to as much information as possible about decisions that were made by psychiatric, psychological, social work and other professionals throughout her youth so that she can come to terms with her own challenging personal history. However, while she indicated that the public interest would be better served by her having access to the information withheld, she stated that this was where disclosure would not result in an unwarranted and unjustifiable breach of the privacy of any third party.

I accept that there is a public interest in openness and accountability in relation to the manner in which public bodies including the HSE and TUSLA carry out their functions. However, where the applicant's personal information is inextricably linked to the personal information of third parties, the question I must consider is whether the public interest in granting access to that information outweighs, on balance, the public interest in protecting the privacy rights of these third parties.

I must also bear in mind that release under the FOI Act must be taken as release to the world at large. Accordingly, this is not a question of whether to disclose certain information only for the purposes of the applicant preparing for a criminal case, or dealing with her past; it is not possible under the FOI Act to place restrictions on the use of the records released.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Furthermore, in FP v The Information Commissioner [2016] IEHC 771, McDermott J stated that "the 'public interest' in granting access is not to be determined on the basis of the appellant's personal circumstances or desire to explore or pursue civil proceedings or criminal complaints."

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies. On the other hand, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

While I have sympathy for the applicant in the situation she finds herself, I believe that the interest which the applicant sets out is more properly viewed as a private rather than a public interest. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom these records relate. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Having carefully considered the matter, I find that the public interest in protecting the privacy rights of the third parties outweighs, on balance, the public interest in granting the request. I find, therefore, that TUSLA was justified in refusing access to the records sought under section 37 of the FOI Act.

As I have found that TUSLA was justified in refusing to release the records at issue under section 37 of the Act, I do not need to consider section 35.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm TUSLA's decision to refuse to release further records in full or in part to the applicant relating to her request on the basis of section 37 of the FOI Act 2014.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator